RI in midst of legal crisis

RI in midst of legal crisis

By Frans H. Winarta

JAKARTA (JP): The existence of the rule of law is the key
characteristics of a legal state (rechstaat). Where there is the
rule of law, all court decisions, that have acquired finality,
should always become executable. Unfortunately, every time it is
impossible to execute the court's ruling, it will also become
impossible to protect the rule of law. Therefore, the court's
decision should have the power of execution in order to ensure
the rule of law.

The ideals of a legal state are clearly enshrined in the 1945
Constitution and are thought to be the ideals of the founding
fathers of this republic. Furthermore, the Constitution even
makes it clear that the ideal form of the state is a legal state,
not a state based on power.

As we approach Indonesia's 50th Independence Day anniversary,
we ought to re-examine whether all the ideals that our founding
fathers once had are already a reality. Based on the recent
comments made by our legal experts and practitioners, who have
complained about various problems found in the implementation of
the law, and based on the controversies between court
decisions--including those made by the Supreme Court, we are
forced to conclude that nowadays we are in the middle of a crisis
of legal and court authority.

Add to that the belief that some kind of court Mafia exists in
this country, the issuance of a "personal memo" that stood in the
way of the law and prevented the execution of a finalized court
decision, all lead us to believe that we are indeed in the midst
of such a crisis.

The issue of a court Mafia was first brought up in the early
1980s. It was not followed by an improvement of the salary and
benefits that a judge received. On the other hand, the tasks that
a judge has to undertake continues to grow as the backlog of
cases also grows. Needless to say, this should never be used to
justify collusion and commercialization of court decisions.

Recently another controversy came up as several high-ranking
officials in the judiciary system admitted that there was indeed
a court Mafia. However, they claimed that the percentage of those
involved was only 30 percent, as opposed to the 80 percent esti
mated by former Supreme Judge Asikin Kusumaatmadja. As a matter
of fact, to the common people it never mattered how big the
percentage was. To them, the more relevant question is whether
the court Mafia exists.

If it does, then steps should be taken to correct the
situation. A "penalty and reward" system may have to be used, so
that judges, who make proper and honest decisions, can be
promoted, while those who repeatedly make controversial decisions
should be penalized. Other sanctions should also be applied.

The unrealistic salary and benefits that a judge receives is
certainly responsible for "commercialization" of court decisions.
If executives of private corporations can earn three to five
million rupiah per month, it should be quite reasonable for a
judge on the first, as well as the second tier, and the Supreme
Judge, to earn three to five million rupiah exclusive of fringe
benefits.

While it is true that salary is not the only factor that
determines a judge's professionalism, honesty and independence, a
judge could work more comfortably if he got a sufficient salary
and fringe benefits. He would become more focused in his job and
he would also become more immune to persuasion and invitation to
form a collusion. Honesty is for the conscience to decide.
Professionalism can be improved through training, education, or
studying overseas--particularly in countries where the law has
become an essential part of life and where the law governs
various aspects of human life.

In such countries, it would feel as if even breathing was
regulated by the law. In those countries, people repeatedly say
"Ask my lawyer" or "I want a lawyer". These are common phrases
among all citizens, regardless of whether they are common people,
businessmen or defendants. It is only in countries where law and
order are respected and appreciated by the community that we can
make meaningful and useful comparison with the situation in our
own country.

A free judiciary authority is one that cannot be influenced or
directed by both executive and legislative institutions. Such are
the ideals contained in our 1945 Constitution. The constitution
governing the state and the society has its wishes; however,
whether the freedom and impartiality of our judicial institutions
have indeed become a reality is still for us to evaluate.

If we take into consideration the aforementioned issues, it
seems clear that the ideal of a legal state is still a utopian
dream and is still far from becoming a reality. Recently, former
chairman of the Supreme Court, Poerwoto S. Gandasubrata, admitted
that there were external powers that exerted their influence over
court decisions. These factors included telephone calls from
powerful figures as well as memos, which are more popularly known
by their Dutch version, kattebeletje. This admittance confirmed
the lack of freedom and independence of our legal institutions.
The confession came as a big shock to many, but it is the truth.
The hypocrisy over our bureaucracy would go on forever unless we
admit it and do something to improve it.

Our judiciary institutions can make appropriate decisions only
if they are truly independent, impartial and honest. And the
court can only be honest if it is honest enough to admit its own
weaknesses. The question whether our court should be supervised
by both the Minister of Justice and the Supreme Court, or whether
it should fall under the auspices of the latter alone, has not
been answered until today.

However, as the judges aired in a recent judges association
seminar, in light of the declining authority of the court, it
would be most appropriate for the court to be supervised only by
the Supreme Court. The voice of a judge is the voice of God's
representatives. Therefore, it should not be taken lightly and it
should never be commercialized. It is deplorable if there are
still judges who are guilty of the crime.

Our national development, which has emphasized economic and
physical growth, has been at least partly responsible for the
denial of the supremacy of the law. In turn, this has resulted in
obstacles blocking our efforts in creating a legal state.
Therefore, it is not surprising to see people compete in
accumulating wealth, completely disregarding moral questions such
as honesty and integrity. It seems as if the most important
objective nowadays is to get extremely rich so that respect will
follow. Human characters seem to have ceased to be important
factors, as it is now more important to look at an individual
based on what he is.

A judge is also a human being, and as such he is also vul
nerable to temptations, particularly if the condition is indeed
conducive.

The writer is an advocate and a corporate lawyer in Jakarta.